STATE OF NEW JERSEY VS. A.S. (11-03-0264, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1448-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.S.,1

Defendant-Appellant.

Submitted November 18, 2020 – Decided December 11, 2020

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 11-03-0264.

Joseph E. Krakora, Public Defender, attorney for
appellant (Charles P. Savoth, III, Designated Counsel,
on the brief).

Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz, Special
Deputy Attorney General/Acting Assistant Prosecutor,
on the briefs).

1
We use initials to protect the privacy of the victim. See R. 1:38-3(c)(12).
 Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant A.S. appeals from a September 13, 2018 order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. For the

reasons that follow, we decline to consider those arguments defendant raises for

the first time on appeal and otherwise affirm because defendant failed to

establish a prima facie showing of ineffective assistance of counsel.

I.

In 2013, a jury convicted defendant of sexually assaulting and

endangering the ten-year-old niece of his girlfriend. The details underlying

those convictions are set forth in our prior opinion and need not be repeated

here. See State v. A.S., No. A-5420-13 (App. Div. Oct. 26, 2015) (slip op. at 2-

7).

Pertinent to this appeal, the charges were brought to light after the victim's

grandmother – who also was the aunt's mother – "discovered a link to a video

depicting the victim sleeping in a bed as a black man's hand pulled her

underwear down and exposed her vagina." Id. at 2. As detailed in our prior

opinion, defendant moved to suppress the video recording; following the State's

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emergent appeal to this court, the recording was admitted in evidence. Id. at 3-

5, 8. At the conclusion of the two-day trial, defendant was convicted. Id. at 5.

Prior to sentencing, defendant moved for a new trial, claiming his attorney

"had prior business dealings with either the child's father . . . or his relat ives or

associates." Id. at 5. The trial court granted defendant's companion application

to retain another attorney to represent him on the new trial motion and at

sentencing. Ibid.

Thereafter, the court conducted an evidentiary hearing on defendant's

contention that trial counsel's conflict of interest warranted a new trial.

Defendant, his girlfriend, and trial counsel testified in that regard. Id. at 5-6.

Defendant also asserted he was entitled to a new trial because "he received a

letter from an Essex County Prosecutor which stated that the child was involved

in a separate sexual assault by another family member." Id. at 6. Defendant

claimed that "newly discovered evidence could have been used at trial to cast

doubt on the child's testimony." Ibid. The trial court denied defendant's motion

for a new trial on both grounds. Ibid. Defendant was sentenced to an aggregate

seven-year prison term, with an eighty-five percent period of parole ineligibility

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

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 Defendant then filed a direct appeal, primarily arguing the trial court

erroneously admitted the video recording in evidence and denied his motion for

a new trial on both grounds presented to the trial court. Id. at 8, 11-12.

Regarding the video recording, defendant claimed the State failed to properly

authenticate the recording and its probative value was substantially outweighed

by its prejudice. Ibid. Defendant did not challenge his sentence. We rejected

defendant's arguments and affirmed. Id. at 13. The Supreme Court denied

defendant's petition for certification. 224 N.J. 282 (2016).

Defendant, through counsel, timely petitioned for PCR in April 2018,

alleging ineffective assistance of trial counsel. 2 Asserting he was "working at

Amtrak in Sunnyside Queens, N[ew] Y[ork] while the crime took place[,]"

defendant claimed trial counsel failed to investigate alibi witnesses. Contending

he discovered "after the trial" his attorney "had handled three legal matters for

people related to [the victim's father,]" defendant contended trial counsel "had

[an undisclosed] conflict of interest." Defendant further claimed his attorney's

2
According to the PCR judge's written decision, defendant apparently filed a
pro se PCR petition on October 24, 2017, seeking "relief due to 'Hearsay -
inadmissible' and 'Evidence - not authenticated.'" As noted by the judge,
defendant also filed a handwritten supplemental brief, asserting counsel was
deficient for a multitude of additional reasons, without a supporting
certification. The record on appeal does not contain defendant's pro se petition
or supplemental brief.
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performance at trial was deficient because he failed to raise the then-thirteen-

year-old victim's competency to testify and failed to object "to continuous

leading questions."

In his accompanying brief, PCR counsel expounded upon defendant's

assertions and further contended trial counsel failed to argue "the grandmother

did not have authority to access [her daughter]'s computer[,]" where she

observed the video recording. At the judge's invitation after argument, PCR

counsel supplemented his brief, solely as to whether defendant had standing to

contest the grandmother's authority to obtain the video recording.

Thereafter the PCR judge, who was not the trial judge, issued a cogent

written decision denying PCR. In doing so, the judge squarely addressed all

issues raised in view of the governing legal principles. The judge applied the

two-prong test established by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987), and found defendant was not

entitled to an evidentiary hearing because he did not establish a prima facie case

of ineffective assistance of counsel. This appeal followed.

In his counseled brief, defendant limits his arguments to the following

overlapping points for our consideration:

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 POINT I

DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE
COUNSEL WHEN DEFENSE COUNSEL FAILED
TO PERSUADE [THE TRIAL] COURT TO STRIKE
THE STATE'S PREJUDICIAL COMMENTS
DURING CLOSING TELLING THE JURY THEY
COULD RELY UPON THE COLOR OF
DEFENDANT'S HANDS TO CONCLUDE THE
HAND IN THE CRITICAL VIDEO AT ISSUE WAS
DEFENDANT'S HAND, DESPITE THE STATE
HAVING PROVIDED NO EXPERT OR
LAYPERSON TESTIMONY TO THAT EFFECT[.]
([N]ot raised below)

POINT II

IT WAS AN ABUSE OF DISCRETION FOR THE
PCR COURT TO DENY DEFENDANT AN
EVIDENTIARY HEARING TO ALLOW
DEFENDANT TO FULLY ADDRESS HIS
CONTENTION THAT HE WAS WRONGFULLY
CONVICTED DUE TO INEFFECTIVE ASSISTANCE
OF COUNSEL IN ESTABLISHING THE HAND
THAT WAS IN THE VIDEO AT ISSUE COULD NOT
HAVE BEEN HIS AS HE HAD TATTOOS ON BOTH
HANDS[.]
([N]ot raised below)

In his pro se brief, defendant raises the following additional arguments,

which we renumber for the reader's convenience:

POINT [III]

[The] Prosecutor withheld exculpatory evidence.
Photographs of . . . defendant[']s hands that display

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 tattoos were not turned over to . . . defendant[,]
depriving his counsel of a proper defense which
resulted in "fundamental injustice." R. 3:22-4([a])(2).
[(Not raised below)]

POINT [IV]

[D]efendant was denied his right to effective assistance
of counsel guaranteed by the [S]ixth [A]mendment of
the United States Constitution and Article 1 paragraph
10 of the New Jersey Constitution.

[A]. Defendant was deprived [the effective]
[a]ssistance of [c]ounsel, as trial counsel failed to
investigate and subpoena photographs of defendant's
hands to be included in defendant's argument for
interlocutory appeal and to challenge the credibility of
the witness at trial[,] constituting a Brady[3] [v]iolation.
[(Not raised below)]

[B]. Counsel failed to investigate [the] victim to
uncover "new evidence" and order a psychological
exam/[N.J.R.E.] 104 hearing.
[(Partially raised below)]

[C]. Counsel failed to adequately challenge "hearsay-
inadmissible" and "evidence not authenticated."
[(Partially raised below)]

[D]. Counsel failed to request a Wade-Henderson 4
[h]earing.
[(Not raised below)]

3
Brady v. Maryland, 373 U.S. 83 (1963).
4
United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208
(2011).

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 II.

To the extent defendant's arguments challenge the PCR judge's legal

conclusions, our review is de novo. State v. Parker, 212 N.J. 269, 278 (2012).

"[W]here, as here, no evidentiary hearing was conducted, we may review the

factual inferences the court has drawn from the documentary record de novo."

State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016); see also State v.

Harris, 181 N.J. 391, 421 (2004).

As a threshold matter, however, we will not consider the arguments

advanced by defendant in points I, II, III, and IV(A) and (D). None of the

contentions raised in those points was presented to the PCR judge for his review,

despite defendant's opportunity to do so in his counseled brief and pro se

submission. None of those contentions was supported by a sworn statement.

See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (citing R.

1:6-6).

"For sound jurisprudential reasons, with few exceptions, '[we] will decline

to consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available.'" State v. Witt, 223 N.J. 409,

419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Indeed, our

Supreme Court has long held appellate courts do not "consider questions or

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issues not properly presented to the trial court when an opportunity for such a

presentation is available unless the questions so raised on appeal go to the

jurisdiction of the trial court or concern matters of great public interest." Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quotations omitted).

"Generally, an appellate court will not consider issues, even constitutional ones,

which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012).

For the first time on appeal, in point I, defendant contends trial counsel

was ineffective for failing to persuade the trial court to strike the State's closing

comment. That comment invited the jury to visually compare the complexion

of defendant's hands with that of the hand portrayed in the video. Notably,

defendant raised a different argument about the video recording before the PCR

judge, contending trial counsel failed to argue the grandmother was not

authorized to access her daughter's computer.

In his pro se brief, defendant incongruously asserts the prosecutor

withheld post-arrest photographs of defendant's hands, which depicted his

tattoos, and trial counsel failed to subpoena those photographs. Defendant did

not raise any improprieties about the photographs of his hands before the PCR

judge.

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 Further, defendant improperly annexed to his pro se supplemental

appellate brief copies of eight photographs purportedly depicting his hands. See

Cummings, 321 N.J. Super. at 170; see also R. 1:6-6. There are at least two

problems with that "evidence." Initially, the material was not presented to the

PCR judge for his consideration and, thus, it is inappropriate for consideration

on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014); Robinson, 200

N.J. at 20. Secondly, both trial and appellate courts "cannot fill in missing

information on their own." N.J. Div. of Child Prot. & Permanency v. A.L., 213

N.J. 1, 28 (2013).

In sum, none of defendant's newly-minted contentions is jurisdictional in

nature or substantially implicates a public interest. Moreover, the record is

insufficient to permit the adjudication of defendant's delayed challenges

especially here, where defendant failed to support his bare assertions with a

previously-filed sworn statement "alleg[ing] facts sufficient to demonstrate

counsel's alleged substandard performance." Cummings, 321 N.J. Super. at 170.

Further, defendant has not specifically challenged the PCR judge's findings.

Because our task on this appeal is to review the PCR court's rulings in view of

the record before us, we decline to consider defendant's belated arguments.

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 We turn to the arguments raised in defendant's point IV(B) and (C), which

were partially raised before the PCR judge. Having carefully reviewed those

contentions in view of the applicable law, we conclude they lack sufficient merit

to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm

substantially for the reasons set forth by the PCR judge in his well-reasoned

decision. We simply note, to the extent defendant seeks to supplement his

arguments on appeal, we again decline to consider those arguments that were

not raised before the PCR judge.

Affirmed.

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